“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
That said, how did the beginning of this destruction happen? There are 3 things in play here: seatbelt laws, the drug war, and the erosion of the protections of the 4th amendment. Beginning June 30th, Arkansas’ seat belt law changes to permit a law enforcement traffic stop based on the primary violation of a motor vehicle driver or front-seat passenger who is not buckled-up.
What this means is that a police officer may stop any vehicle that he claims to observed an unbuckled driver or front seat passenger. This adds to the nearly infinite list of reasons for being stopped that already exist. It also serves as a good way to generate revenue for a department. My state (Arkansas) resisted making seatbelt violations a primary offense for many years. However they caved, in June of 2009, under federal pressure and a threat to withhold DOT funding if the legislature didn’t pass the law. I guess that’s the price you pay when you accept federal dollars. You must bow down to federal demands.
The Drug War. There is too much there to dig too deeply into, so I will narrowly talk about how it pertains to the topic at hand. Police use dogs in order to detect drugs that are concealed from their view. The idea is that a dog can be trained to smell and give notice of the presence of contraband. In practice, dogs can signal the presence of drugs whether there are drugs in the vicinity or not, for any number of reasons. This effectively gives the police a mobile search warrant on a leash. Case law has held that a dog alerting is justification for police to search you. If they find something, you get to go to jail. If they don’t find anything, then you just get to go on about your day knowing that a dog just violated your 4th amendment protections against warrantless searches. This doesn’t bother some people too much. Others, myself included, it bothers a great deal.
Comments
158 responses to “The Evolving Destruction of Fourth Amendments Rights”
It is sad as we approach Independence Day how much the Founding Fathers would be shocked and appalled at how little the majority of the American people believe or support the founding principles of the country. I can picture James Madison saying, “Forsooth man! You will consent to a government agent searching you and your possessions based on the approval of a mere dog? Have you no shame?!”
“Can you not confront your accuser?”
“Woof!”
*blows own brains out with black powder pistol*
I just finished reading this book:
https://www.amazon.com/s/ref=nb_sb_noss_2?url=search-alias%3Daps&field-keywords=lion+of+liberty&rh=i%3Aaps%2Ck%3Alion+of+liberty
I think Patrick Henry pretty well understood that centralized power will inevitably expand and destroy any restraints put on it. I argue with my Dad all the time, who is an NRA lifer and 2A zealot, who hand waves away 4th amendment violations by anyone who isn’t a federal agency, because cops are “good guys.”
If they’re the good guys, then they should have no problem following the rules.
If they are good guys, then they should…..
believing the rest of us have rights that supersede their authority
find corruption in their ranks abhorrent and expose it immediately
error on the side or prudence in the commission of arrests
respect private property rights
I could go on…..
It’s depressing to me how many people where I grew up would be the first to defend the 2A and (mostly) the 1A, but when it came to the 4th, 5th, or 6th, the law was always right. Honestly, if you pressed them enough, they’d probably disregard the 8th too.
The 8th is difficult to enforce. For example, execution by hanging was in common use at the time and not seen as cruel. Yet, nowadays it is virtually extinct, seen as barbaric and having been replaced with the “humane” method of execution by botched injection with non-Hippocratic quasi-medical trappings. If you ask me, the latter is much more of an 8th Amendment violation than the former.
I never understood what people had against firing squad. If I had to pick a method of execution, seems the quickest and most painless route to go then being shot up with drugs.
It’s my understanding that one round of .50AE and a phone directory is pretty quick, and that it’s not unusual, given the number of incidents we’ve had reported here in the last few days.
Maybe the hospitals and medical schools don’t want the state to give them a bunch of shot-up corpses.
Guillotine and eternal oblivion.
Every *&^ session they try. I’ve asked this before: How many Montanans are on this board?
Relevant.
You had one job guys
I think they’d be more appalled at what the country already is.
“Ah, America at two hundred! Are we still the nation of agrarian individualists with no standing army that stays out of Europe’s business and allies with no one?”
“Uh…about that…”
There was already some lively disagreement between the agrarians (Jefferson) and the merchants/proto-industrialists (Hamilton) so it’s hard to say that anyone taken from that time period would consistently expect agrarianism.
And a number of the FFs lived long enough to see deep into the industrial revolution.
Are we transporting them from 1776 or 1824?
Not only that, but even Jefferson seems to concede at times that his vision is somewhat utopian and he is swimming against the current with his agrarian philosopher farmer views.
Especially as the founding took place before the industrial revolution really kicked off.
I think they would be righteously pissed about our involvement in the world wars, especially the first one.
“See, that’s exactly what we were talking about!”
The War Powers Act of 1941 and the generally creepy emergency powers granted to the federal government during the Cold War would probably enrage them.
True, but world war one was pretty much the epitome of Europe being idiots and dragging the rest of the world into their mess, and the closest to the platonic ideal of Jefferson’s “shit we shouldn’t be involved in”.
There were at least some justifications for what we did in world war two and the following cold war, weak as those reasons would be to the founders, but WW1 was particularly stupid.
I could also imagine the founders pimp slapping Wilson over the treaties of Versailles and Trianon. And for pretty much everything else Wilson did.
I meant more that I don’t think any of them would expect cities in the millions run like creepy fiefdoms, much less something monstrous like the BosWash megalopolis.
Well, the northeast megalopolis is an affront to all things good and decent, I’ll grant you that.
“A republic, if you can keep it.”
“Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters.”
– supposedly Benjamin Franklin
“Well, if it helps, we stopped invading Canada?”
“So did slavery gradually die out due to economics and our founding principles like we expected it to?”
“Oh…you might want to sit down…”
“No, but we killed a lot of slave owners! That’s almost as good, right?”
“Wait… what do you mean most southerners didn’t own slaves?”
“Well you at least let all the blacks go back to Africa or they became functional members of our republic right?”
Still working on that one.
The war on drugs has been the single most influential policy destroying 4th amendment rights. Basically every shit ruling from SCOTUS can be tied to some prosecutor trying to get drug evidence in. Perversely, I think if we obliterated the exclusionary rule we’d not have had such harm to the 4th amendment.
Without the exclusionary rule, where is the incentive for the authorities to follow the 4th amendment?
Individual liability of the officers in question for violation of right. In addition to nominal damages, there are already statutory damages for such things. Without getting into a full article on it: If an officer is willing to wager his career to put a ‘bad’ guy away then let him. Evidence of actual guilt should not be discarded by fiat. Put the incentives on the proper parties, right now we have the worst possible alignment of incentives and indemnities.
In theory, personal responsibility on the part of police officers. The exclusionary rule was as much about keeping officers out of civil cases as it was about protecting the public. However, I highly doubt the ever-growing immunity cops enjoy would be gone or diminished without the exclusionary rule.
Obviously police should not be immune from their acts. I’ve no problem with departments choosing to indemnify them, but they’re citizens and not the kings men. If a department wants to get evidence in violation of the 4th amendment they need to pay for it. If that evidence shows the actual guilt of the party taken, they too, should be punished to the extent of the law.
What is a department indemnity vs. a blanket immunity?
Indemnity means someone is still holding the bill, i.e. liable, at the end of the day, just not the individual indemnified – which transfers liability to another party. Immunity means they can’t get billed in the first place.
There is some tortured history here as well because it beings to touch on the doctrine of sovereign immunity. The short version is: you can’t sue the king because he is the font of law. This is logically extensible to the kings men, as they act on behalf of the king. The legal hairsplitting, for our purposes, is that the government (we don’t have a king) may never act outside its proscribed powers.
When the police take evidence in violation of the 4th Amendment they act, as a matter of law, as individuals and not as agents on behalf of the Government – because the 4th amendment restricts the government from so acting. The officers are therefore liable.
The difficulty arises because some legislatures and courts don’t understand the nature of dual capacity or have intentionally ignored it and extended immunity where it is not due. This prevents individuals from bringing suit in the first place against officers who have violated their 4th amendment rights, courts toss them for lack of jurisdiction.
This is the historical setup for the exclusionary rule developing – courts were unwilling to unravel the fuck-ups of their brother judges in extending sovereign immunity to the police and unwilling to challenge legislatures attempting to do the same. So how do we stop that? Well, I guess we can let the guilty go free…
*prescribed
Perversely, I think if we obliterated the exclusionary rule we’d not have had such harm to the 4th amendment.
I doubt it. If we got rid of the 1A, we’d be a lot more like Europe in terms of respect for freedom of speech. The only problem with the exclusionary rule is that it pales in comparison to the power of immunity.
The decisions which bend and warp the 4th amendment are those arising from instances where the there is overwhelming evidence of actual guilt and the court can’t bring themselves to apply the exclusionary rule. So, instead of realizing their mistaken judicial creation they instead chose to damage the constitution. This is an incredibly perverse outcome.
One could just as well frame the matter as the Courts handing out judicial creations like the exclusionary rule and qualified immunity as paeans to civil rights to provide cover for agreeing with government agents running roughshod over those same rights, with their failure to uphold their own creations as strong evidence that they were never really that serious about civil rights in the first place.
This is the cancer of legal realism. It must be excised from the bench.
Nice write up, Lachowsky.
Thanks. I’m late to the party, I actually had to do work at work today.
There are 3 things in play here: seatbelt laws, the drug war, and the erosion of the protections of the 4th amendment.
More than three. For example, the Homeland Security/NSA shit, where all calls, emails, and web activity are continuously monitored. 100% wiretap with a FISA figleaf. And that’s just an evolution from Bill Clinton’s “Carnivore” program, which itself came from J. Edgar Hoover’s warrant-less wiretapping and human-assets information collection.
I agree. I wrote this rather narrowly as it pertained to an incident I had with the police a few months back. If I started looking at all the different ways the 4th is being violated, I would never be able to quit.
I know Colorado has seat belt laws, but you can’t be pulled over for not wearing one, you can be fined for not wearing one if you’re pulled over for something else. Ridiculous that Arkansas lets you get pulled over exclusively based on that. Are they as bad as Virginia on their speeding laws?
North Dakota fairly recently made it a primary offense, too. And in Minnesota it has been for a while. I suspect it is in most states.
It’s probably coming here at some point. Looks like Montana’s safe for now, but they’ve been trying to make it a primary offense there too.
It’s been a primary offense in Illinois since about 2003 or so. Damn commies
And yet the cellphone shit isn’t. I probably have a Close Encounter of the Worst Kind twice a day with some phone-addled asshole, despite the law.
I believe the cellphone use thing is a primary offense, too. I got pulled over for that on the highway when I was stuck in traffic. I wasn’t even on the phone, I looked down to change a podcast. There were literally no cars moving at all. The cop gave me a warning
I guess I was wrong about North Dakota. It’s secondary for adults and primary for under 18. *Cop: I swear, I thought the driver was under 18!*
According to Wikipedia it’s a secondary offense in only 18 states.
Oh, and be careful in the Denver area. It is a primary offense in the tiny municipality of Mountain View.
One rule of mine is never go through Denver unless I have no other choice. If I have to go to Colorado Springs or thereabouts, I take Hoosier and Fairplay.
I think you’re wrong. I remember the vote to make it a primary offense, because some state legislator wanted to change her vote afterwards because one of the”pro” arguments was that it would increase revenue, and she admirably thought that was a fucked up reason (drink). But, it was too late, and a cop in Colorado can you pull you over because you’re not wearing a seat belt.
According to Google, you are right and i am wrong
Scalia’s majority opinions in Florida v. Jardines saved us from these dogs being used as reason to enter your home. A 5-4 decision that came out with curious bedfellows.
Not that curious. Ends v Middle.
The Scalia-Ginsburg combo on procedural cases is pretty common.
Doesn’t Alito usually fall on the “end”?
I keep hoping that some day an enterprising lawyer-scientist will mount a successful Daubert challenge to all dog-based evidence.
There are already studies on the high false-positive rate of drug dogs. The courts don’t care, because they aren’t really independent arbiters of the law; they are part of the cop-industrial complex, and only go against the complex when they think the legitimacy of the courts is at issue.
I’m aware, I’ve actually been trying to bend Prof. Saks to do some writing in this area. What I mean is I’ve not actually seen any dog evidence taken to a proper Daubert hearing nor am I aware of any appeals where a hearing was denied on the basis that “we don’t need to Daubert dogs.” Maybe its a losing argument, but I’m not sure of what other way to try and hold their feet to the fire.
I think you are barking up the wrong tree. Daubert sets the standard for expert witnesses (caveat: I am not a litigator). Dogs are neither experts not witnesses, so I don’t think Daubert would apply.
I don’t think you could apply Daubert to the dog’s handler, either, as xe is not an expert witness either, just a fact witness testifying that the dog “hit” on a car, person, whatever.
Not sure what the technical legal route would be to get dogs barred from authorizing searches. It might, unfortunately, be the very costly and time consuming one-at-a-time practice of having each dog tested for reliability. The problem is, that’s only going to come up in cases where the dog was right, which is going to make a ruling that the dog isn’t reliable hard to get.
Daubert is typically used for expert witnesses but it is actually the test for all scientific evidence, and there is jurisprudence which explicitly overrules and replaces Frye as the standard for such things. The strict way to do things is to first get the experts etc. to validate dog evidence, which means running it through a Daubert ringer – you still need someone to attest to the validity of a dog sniff. Strictly, that is not the dog’s handler. A similar line of attack was used to finally get courts to chuck ‘burn pattern’ evidence.
Procedurally the attack would, I think, be on whether a dog hit is objectively reasonable suspicion. If dog hits are not empirically tied to the object of their search, then they cannot have an objective basis for suspicion. This is of course what the research seems to bear out, dogs hit on cues from the handler. As low as the standards are for suspicion, we still haven’t accepted “hunch” or “just because” as enough.
By they I mean officers, their suspicion must be reasonable – e.g. come from some evidence outside them-self. What the research indicates is that the dog merely serves as a proxy for the officers internal (subjective) suspicion, this is something we don’t otherwise allow.
See, this is why I disclaimered (caveat: I am not a litigator). Don’t tell my boss, but I don’t actually know everything.
The more you know™ the way I figure it, the more jurists who are aware of this stuff the better off we all are. The only way we can beat down shitty forensic science is if people actually know it isn’t ‘science’ in the first place.
I guess real property is one of those lines where Scalia remembered what it meant to be an originalist. The same circumstances, but with a car instead of a house? Just peachy. It reminds me of his decisions in Hamdan v. Rumseld and Hamdi vs. Rumsfeld. Not a citizen? They can hold you forever, and the courts can’t even review it. Citizen? Your detention is unlawful and the government must immediately charge you or else release you.
Actually, Scalia had a magnificent dissent in Hamdi v. Rumsfeld. He was the least willing of all the justices to accept the government’s argument. There is a myth that the Left created that accuses Scalia of being terrible on the 4th Amendment, but that was just not true.
CATO did a nice write-up about how Scalia was an unappreciated staunch defender of the 4th Amendment
https://www.cato.org/blog/justice-scalia-underappreciated-fourth-amendment-defender
Actually, Scalia had a magnificent dissent in Hamdi v. Rumsfeld.
I do not disagree. My point was to contrast his “magnificent defense” there with his total rolling over in Hamdan. Basically, the government can do whatever it wants with you as long as you are a non-citizen in wartime.
s/defense/dissent/
I see your point here. Do you believe that the 4th Amendment should extend to people not living in the US or not having citizenship? Serious question.
There are limitations to the originalist view of judicial jurisprudence, because its line of thinking begins and ends with what is stated in the Constitution. The Founders covered a lot of important basis, but left out a lot of individual rights, in my opinion. Still prefer over the living constitution approach where anything goes, so long as the ‘right people’ agree with you.
Not speaking for kbolino, but my personal opinion is that, since the Constitution and amendments thereto are written as limits on the federal government, there should be no distinction between citizens and non-citizens.
I believe the 4th Amendment applies to the government, wherever it operates. Congress may suspend the writ of habeas corpus but only in times of invasion or rebellion. So, if the U.S. military engages in foreign operations not related to an ongoing invasion of the U.S. and detains people found on foreign battlefields, then their detentions can be challenged in U.S. courts even if they are foreigners held on foreign soil. Basically, if the U.S. government can touch you, then it can’t escape its own laws.
Exactly this. Of course, the price we pay as citizens is we also can’t escape our government’s laws.
Uncle Nino single-handedly resurrected trespass as independent basis for 4th amendment analysis. For this I will always be thankful, as that is how it was always supposed to work.
http://www.barstoolsports.com/boston/wake-up-with-jenna-kaey/
I’d like to conduct an unreasonable search or seizure on her. Huh!
I know this one! It’s model
ZING!
This comic taught me that the 4th amendment is well on it’s way to being dragged out behind the woodshed and shot. It’s not the laws that have been passed, but the courts’ willingness to uphold them despite being in violation of our rights.
Thanks for that link. Most excellent.
See? This is why people should come here: Comics! And horror stories…history…Thiccness…RAPESQUATCH…. Never mind; lost the momentum there.
Pshh. You can’t expect us to take an amendment seriously when it’s presented in Papyrus font. Go Canterbury or go home!
Ooh, you should write a poem about that.
Looks like Montana’s safe for now, but they’ve been trying to make it a primary offense there too.
Not for lack of trying by the likes of the Billings Gazette editorial staff.
It’s nothing but another excuse for some pig to pull you over and inventory the contents of your vehicle and your pockets.
Oh, it’s fucking ridiculous. I read an article in one of their newspapers about an advocate for the law talking about how his daughter was killed because she wasn’t wearing a seatbelt. His line of reasoning was “if it was a law, she would have been, she was a rule follower.”
This one, I think.
There’s somebody going around executing people for not wearing seatbelts?
That seems a little harsh…
“No price is too high to keep our drivers safe!”
Lt. Briggs and Det. Callahan nod vigorously.
Grieving parents get my deepest sympathies and often enrage me at the same time. About 2 years ago some teenagers were on their way to a basketball tournament some mile from home. 4 of them in the vehicle, two of them brothers. They got ran off the road by a semi that left the scene and never was ID’d. The two brothers died. After many months of fruitless searching for the driver, the parents are now suing (among others) the boys basketball coach for letting them drive to the tourney. Keep in mind the parents were fully aware of where they were going. They let them take a family vehicle and gave them each a wad of cash for spending money. It’s like they need a pound of flesh and they are determined to get it from someone. It saddens and angers me.
I mention the cash because it was stolen off their dead bodies by a first responder…just a horrible fucking story all around.
Just because-
The widespread outrage over Trump’s “bullying” of poor little Mika B made me think of this:
“I blow my nose at you!”
Widespread feigned outrage, I’d say
Lachowsky, you mentioned a bit ago trying to get a FOIA request on a cop that pulled you over used a drug dog. How is that progressing?
He uploaded the video he got awhile back. Standard ‘he’s acting nervous’ bullshit the cops always pull.
Did they use their magic noses to sniff out drugs?
After 4 trips to the cop shop, they finally turned it over. It was, less than pleasant getting the video from them.
fucking money, that’s all we are
“tax cattle”
That’s a fine expression. Consider it stolen.
I heard it from someone here. I wish I could have come up with that on my own!
May have been me. I use the term “tax cattle” and “data cattle” in different contexts.
Great! Now I can upgrade my morning greeting to my (l)ibertarian boss. “Greetings, tax cattle! How goes the neverending battle against our statist shitlord oppressors?”
And, if you’re in the web business, you can refer to the endusers as “data cattle”. Because, let’s face it, most consumer facing services on the internet (apps, search engines, you name it) make their money by collecting and reselling data.
Spending money on fucking is a lot better than having it taken in taxes.
“tax cattle”
+ “Don’t kill the host.”
A dog barks. Soon, every goddam dog in the neighbor hood is howling
The tweets, on the one hand, were simply another volley in the administration’s ever-ramping battle against the American press—tweets in line with the accusation the deputy White House press secretary Sarah Huckabee Sanders made, earlier this week, about the media somehow being, as an institution, “fake news.” They featured typical Trumpian insults that were in line, despite their pettiness, with what increasingly seems to be the grander rhetorical project of this presidency, which is to delegitimize the mediating role of the media, and, consequently, to destabilize the notion of communal truth.
Who the fuck comes up with this preposterous hogwash? I dread to think what the Deep Cogitators at the Nation are beavering away on. Suit up, Derpetologist. You’re needed.
“communal truth”?
WTF?
There’s nothing we can’t socialize! We need to rectify the massive truth inequality in America!
They don’t get to be the gatekeepers of the narrative anymore.
I think that’s the one that says if enough people believe something, then it’s true. Like how the earth was flat until about 1000 years ago. Or how blacks and indians weren’t people until the mid nineteenth century.
The only way that could have been better was if the word “nuance” was used in a smug way.
You think these hacks were gonna give up their power without a fight?
It’s a classic tale: boy meets girl, steals her purse, girl runs boy down with SUV.
I hope she got out and said to him “Are you feeling tired? You look a little run down.”
Maybe a little depressed.
If he had managed to get behind the rear bumper he would have been exhausted.
He had thought he would get away with it, but his ambitions were crushed.
… deflated, even.
Well, he was tired.
Did you take care of him?
I threw him in the freezer.
Awwww… you shoulda said ‘Cool off’.
Well, you missed it earlier when I distracted him with the monkey and knocked him out and said ‘Playtime’s over’.
You’re off the hook!
A truly awesome movie.
Braswell was charged with assault with a deadly weapon.
Take it to a jury trial, sweetie. I like your chances with a jury, a lot.
Any jury who convicts a pregnant woman for running over her purse snatcher needs a woodchipper pedicure.
So long as they’re instructed on nullification…
Not even. You of all people know the golden rule of lawyers. If the law is against you, argue the facts. If the facts are against you, argue the law.
That’s what I mean, the prosecutor will be arguing the law, which in almost every jurisdiction I can think of this woman violated. The jury ought to ignore the law.
How much lobbying do you think it would take to get the statutes rejiggered so that citizens could use deadly force in protection of property?
It already exists in some places.
I know Texas has it if you’re robbed after dark, far as I know AZ has nothing similar – which gives me the sads.
AZ does not have a law but I cannot think of a jury pool anywhere in AZ that would convict you for blowing away a burglar.
In your home sure, on the street though? If someone snatches my purse and starts running I’m not sure I’d be in the right, as the statutes go, to put rounds in their back.
Maybe parts of Tucson, where you’re getting a bunch of leftists from the university?
True, but assuming you get on target while they’re still in contact with you thats weapons free.
I think in 21st Century America, the odds are real close to nil, and (hangs head in shame) – I think even I’d oppose it.
I agree the odds are low. Would you care to satisfy my curiosity as to your objections to such a law? Really, I’m thinking for in terms of a blanket affirmative defense along the lines ‘recapture of chattels’ should be available in cases of battery etc. Much as self defense is. Burden is on the party charged to prove it. Right now, that is not a viable defense in most places.
It’s primarily a moral objection based upon what seems to me, scale, rather than a philosophical one.
You don’t shoot someone who lifts a bag of flour from your bodega, and runs out the door without paying. You *might* shoot one who steals something of more substantial value.
A financial advisor who embezzles your life savings and compromises your future welfare? Maybe that’s OK.
Where’s the tipping point? What degree of ‘middle ground’? This would be such a fundamental change to society that inevitably, for a while, much of America would look like a movie set for the reboot of the “Death Wish” franchise. Theft is so normal, so pervasive now that it seems to me that the introduction of such a change in the legal code would introduce injustices of its own.
Let me give you an example. Someone tries to steal your car. You need your car in order to get to work. You lose your job if you don’t have your car. You only have liability insurance on your car so you won’t be getting another one. You will starve if you lose your job. By definition, that car thief is threatening your life. Similar situation if someone tries to steal your car out in the middle of the desert. You will die of dehydration if you have to walk back.
This argument could be applied to many different tangible items. Your computer, your food, your tools, etc.
I agree absolutely, theft of a car could mean the difference between a life of poverty and a life of plenty to you. Indeed, that theft for you could represent the difference between life and death. Given your circumstances, your justification for shooting the thief is great.
But a significant part of that calculation is based on both objective and subjective determination of the item to you, which (incidentally and maybe irrelevantly) are not knowable by the criminal.
If same criminal stole $10 from a destitute man, the impact and potential harm to that destitute man is likely to be far greater than the harm would be to you. He would, I’d argue, have a far greater justification to shiv the guy in the back as he runs off than you do in pulling out your revolver and popping a cap in his ass .
Are you justified in killing a thief who steals $10 from you? How about $1? This kind of interaction results in hard cases, which inevitably result in bad laws, even if they are more relaxed than the ones we have now.
A moral objection along an axis of proportionality I understand and can empathize with. Our laws, however, must operate in the absence of individual morality. The beauty of making ‘defense of property’ an affirmative defense is that the Jury gets to decide whether it was warranted under the circumstance. As things stand, we don’t even get to try and make the argument at all.
I wager that theft would be less pervasive if the thief were constantly at fear for their life. I’m willing to entertain however that this sort of deterrence would not alter the base rate of theft.
Aargh.
As for changing society, America of the 19th and early 20th century didn’t look like death wish nor did England of the 18th. The changes to law which have corroded your rights in property are really rather new.
I don’t disagree with your comments about law and order in those societies, but there’s a bit of wishful thinking there. Changing the current legal framework to erase a century or more of legal creep and return us to a society where property rights are better established would not be achieved without a corresponding rise (for a short while) in interments and ER visits.
Also, given the intellectual rigor and understanding of civics in many (most) of the American adult population, I’d prefer not to have to answer for exercising my (new) rights in front of a panel of 12 of them, not until the whole project had been running a while.
Most of the reasoning behind my objection – or rather my reticence in advocating for it, is that most American adults may be nice enough people, but they’re blithering idiots.
You don’t shoot someone who lifts a bag of flour from your bodega, and runs out the door without paying.
You have your rules of engagement, I have mine.
Idiocy is not sufficient basis to curtail their rights subject to your personal judgement. That’s the line of reasoning which got us in this goddamn mess in the first place.
Also, by extension, if you’re worried about the consequences of shooting at someone to recover your stolen property don’t shoot at them. Allowing you the option of an affirmative defense i.e. ‘recapture of chattels’ extends you the Liberty to make that choice on the basis of whatever passions rule your judgement. The law, as it stands, has taken that liberty from you – no matter how just your case may be. The foundational principle of law in the United States is to secure Liberty, even at the expense of our own moral outrage.
The determination of whether to shoot or not shoot would then be determined my expectation that a body consisting of 12 of my peers would ALSO consider my act to be ‘reasonable’.
And that’s the crux of the matter (and a ‘show’ of my elitism) – I can’t trust ‘the man in the street’ to view my liberty to be more important than some thief’s life. We see this played out day-in, day-out in newspapers and in court dockets. Given these kinds of results, it might almost make a defendant want a bench trial.
Bench trials may be an option depending, but it sounds like you have a fundamental problem with the notion of Juries. If we, as a society (the U.S. that is), can’t trust the Jury then its time to rip up the Constitution.
I don’t think we are there yet – but you’re complaints aren’t groundless and are something I’ve thought about quite a bit. It goes to the question of, “Who are my peers?” Obviously there is a jury selection process where we try and weed out people who would be biased against us for whatever inherent reason. There is, however, a second process which injects bias by eliminating</em an entire section of the population from jury service. Again, this is a judicial creation – striking for hardship.
In practice, Judges will strike just about anybody for any hardship. The most commonly claimed hardship is – “I’ve got a job.” I could turn that into another article, but I think just taking it this far is enough for you to draw your own conclusions. The solution is to put that shit to a swift end.
ugh. closed tags.
You can unscrew a lightbulb!
Wait… I think I may have missed the point of this.
boy forgets girl, boy loses girl, girl dies in tragic blimp accident over the Orange Bowl on New Year’s Day.
-Goodyear?
Noooooo….the worst.
It says here that she was charged with misdemeanor assault.
I imagine that if they’d claimed intent to kill or serious injury it would have been a felony?
Exactly, it becomes like a treasured heirloom locked away on a curio cabinet to be admired by generations of schoolchildren learning how enlightened their homeland is.
You can keep your 4th amendment, you just can’t actually use it anymore
So it’s like the 2nd: You can have a firearm, as long as you keep it locked up…or use it like a club.
I didn’t know misdemeanor assault with a deadly weapon was a thing. You would think “misdemeanor” and “deadly weapon” wouldn’t go together.
If you like your 4th amendment, you can keep your 4th amendment.
Olbermann thinks that Trump is unfit to serve on 25th Amendment grounds because of his latest remarks. I agree: he should be sent to the Leningrad Special Hospital immediately.
If it’s insane to insult people on the intertubz everyone on this site is fucked. Also, screw Keith Olbermann.
I’m sure no president has ever insulted anyone. Didn’t Truman vow to beat up anyone who criticized his daughter’s piano playing? Jackson probably offered to duel someone.
Yeah, like I said earlier, lookit the media chasing that laser pointer around the room. I can’t decide if Trump posted that tweet with the intention of setting off another round if idiocy to delegitimize the media, or just got lucky (again, for about the bajillionth time).
Chase the red dot. CHASE IT!